Tindak Lanjut Putusan Mahkamah Konstitusi yang Bersifat Konstitusional Bersyarat Serta Memuat Norma Baru

Abstract

The research is concerning the implementation of verdict stating conditionally constitutional, conditionally unconstitutional and and the verdicts that contain new norm decided by Constitutional Court in the case of judicial review of laws againts the 1945 Constitutions of The Republic of Indonesia. This is a juridical-normative research using secondary data in the form of primary law materials, namely the court decisions which are issued throughout the year 2003 up to the year 2012 that have been collected in previous research. This research aims to know the choice of form of law taken by the addressee of the Constitutional Court verdict in following up the three variant of verdicts mentioned above. The research found that the choice of the form of law in implementing the three variants of Constitutional Court verdict is very diverse. Referring to the form and substance of the implementing rules and regulations of the three variants of verdict, there are still some incoherence with the Constitutional Court verdict which is characterized by the presence of rejudicial review of norms that had been interpreted by the court. To address this problem, the Constitutional Court must be provided with legal instruments, among other, judicial order that enable the Constitutional Court to order by force the addressee to implement the Constitutional Court verdict. In addition, in order that to ensure the harmonization of legislation either vertically or horizontally as a result of the Constitutional Court verdict, then it is worth putting into consideration to expand the authority of the Constitutional Court to review all rules and legislation.

Legal Certainty Principle in Judicial Activism Decision of the Constitutional Court of the Republic of Indonesia Case Number 143/PUU-XXI/2023

“…The concept of the rule of law according to Magnis Suseno is based on the belief that state power must be exercised on the basis of good and just law, which consists of two elements, namely first, the relationship between the ruler and the ruled based on objective norms, not power, and second, the objective norm is not only formally qualified but must also be defensible by legal ideas 27 . Furthermore, Margarito Kamis formulated a number of characteristics of the Indonesian rule of law, among others: (1) The state is based on law; (2) The government is run based on law; (3) Government actions must be accountable; (4) Government actions are based on legal principles; (5) Government actions can be legally corrected and (6) Law i.e. normative limits on power.…”

“…The Constitutional Court's decision rests on whether a particular government policy or law violates those rights 1 . In the practice of judicial activism, laws are adapted to change society through constitutional interpretation and previous court decisions to encourage the application of constitutional values 2 . Judicial activism can be defined as the dynamics of judges who hold judicial power in making and delivering decisions without crossing the boundaries set by the constitution.…”

Positive Legislature Decisions by the Constitutional Court

“…Jika syarat yang diberikan tidak dipenuhi oleh addressat putusan Mahkamah, maka keberadaan suatu undang-undang yang telah diuji dapat dimohonkan kembali. 22 Praktik positive legislature oleh Mahkamah, sebagaimana tercatat di atas, menunjukkan bahwa peran Mahkamah tidak hanya sebatas memiliki hubungan dengan legislatif semata, melainkan Mahkamah juga mengupayakan yang terbaik untuk menjamin tegaknya konstitusional legislatur sebagai tindakan berekspresi Mahkamah dalam membaca konstitusional undang-undang. 23 Apabila memahami praktik putusan positive legislature di atas dapat dipahami beberapa pertimbangan bagi hakim Mahkamah Konstitusi dalam mengeluarkan putusan positive legislature antara lain:…”